Daily BulletinDaily Bulletin

The Conversation

  • Written by Lucinda Beaman, FactCheck Editor

In an opinion piece published by Fairfax Media, WA Liberal Party policy committee chairman and PhD candidate Sherry Sufi argued that “native title can only exist if Australia was settled, not invaded”.

The Conversation asked Sufi for sources and comment to support his statement, for inclusion in this FactCheck. Here is Sufi’s full response:

Disclaimer: My article in Fairfax Media and the correspondence with The Conversation are not statements on behalf of the WA Liberal Party or any of its constituent bodies. The views expressed are my own.

As one of the 193 member states of the United Nations, Australia exists as part of a rules-based world order.

Land conquests through war of aggression were only criminalised after World War II.

This prohibition does not apply retroactively. Doing so would throw the entire world map into turmoil.

It applies on future attempts to conquer. The status quo of international borders at the time was deemed ‘frozen’. Lands conquered before the Kellogg-Briand Pact (1928) are deemed lawful conquests.

Yale Professors Oona Hathaway and Scott Shapiro have comprehensively addressed this topic in their recent publication ‘The Internationalists: How a Radical Plan to Outlaw War Remade the World’. Check Part III, Chapter One.

So it follows that if Australia was invaded, then it has been conquered. This would technically negate claims to separate land rights for descendants of native populations.

Yet the Mabo decision rested on the presumption that Australia was settled, not invaded. Therefore, native title is safe.

Sources that support my argument that territories invaded and annexed prior to the prohibition of war are legitimate conquests:

“However, under the doctrine of intertemporal law and pursuant to the general principle of non-retroactivity of the law, the title to territory conquered and annexed at the time when international law allowed acquisition of title by a conqueror, remains legally valid.” – Boczek, A. (2005). International Law: A Dictionary. Scarecrow Press, page 213.

“ … that before the UN Charter and the recognition of the right of self-determination, conquest and colonisation were legal.” – McDonnell, T. (2009). The United States, International Law, and the Struggle Against Terrorism. Routledge, page 280.

Sources that support my argument that Australia was settled, not invaded:

“It is fundamentally to our legal system that the Australian colonies became British possessions by settlement and not by conquest.” – Gibbs J in Coe v Commonwealth (1979).

“Most legal commentators agree the ‘foundation case’ of the Australian legal system was the UK Privy Council judgement in Cooper v. Stuart (1889), which described the colony of New South Wales as having been ‘peacefully annexed’ by Britain in 1788.” – Windschuttle, K. (2016). The Break-Up of Australia: the real agenda behind Aboriginal recognition. Quadrant Books, page 376.

“The High Court’s decision in Mabo not only preserves the distinction between settled territories on the one hand and conquered or ceded territories on the other, but it also clarifies the law that applies in territories that have been settled in circumstances like Australia.” – Secher, U. (2005). The Mabo Decision - Preserving the Distinction between Settled and Conquered or Ceded Territories

Here are the relevant quotes from the Mabo decision that support my argument:

“International law recognised conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty.”

“As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers … provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action.”

“The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law. The distinction between the Crown’s title to territory and the Crown’s ownership of land within a territory is made as well by the common law as by international law.”

Response from Kate Galloway, lead author of the FactCheck:

As to whether the law deems Australia to have been settled, not invaded, the sources Sufi has cited above are correct.

However, Sufi’s final paragraph contains the reason that his claim that “native title can only exist if Australia was settled not invaded” is incorrect. As Sufi has cited from the Mabo decision, “the acquisition of property [native title] is chiefly the province of the common law”.

Following this, Sufi does not examine the common law rules about land ownership that would apply if Australia had been deemed conquered. This is the missing link in his original argument, and why the claim is incorrect.

Read the full FactCheck here.

Authors: Lucinda Beaman, FactCheck Editor

Read more http://theconversation.com/full-response-from-sherry-sufi-for-a-factcheck-on-native-title-90781

How to Better Study While Working

arrow_forward

School is important, and so is staying safe from coronavirus. Here are some tips for returning seniors

arrow_forward

The Conversation
INTERWEBS DIGITAL AGENCY

Politics

Scott Morrison press conference July 16 2020

Good afternoon, everyone. The Australian economy is fighting back. The jobs of Australians depend on that fight. The incomes of Australians depend on that fight and we are in it and we are makin...

Scott Morrison - avatar Scott Morrison

Prime Minister Scott Morrison Interview with Ray Hadley, 2GB

RAY HADLEY: Prime Minister, Scott Morrison, supposed to be on holidays. He's not. He's online. Prime Minister, good morning.    PRIME MINISTER: G’day Ray. Certainly staying very close to every...

Scott Morrison - avatar Scott Morrison

Scott Morrison Covid 19 update

PRIME MINISTER: Good afternoon, everyone. Today I’m joined by Professor Paul Murphy - sorry, Professor Paul Kelly. I’ve got Brendan Murphy still on the brain. You are not far from us, Brendan. B...

Scott Morrison - avatar Scott Morrison

Business News

What Are Your Basic Rights as an Employee and a Job Candidate?

There is no denying that we are living in very difficult times where finding stable employment is not that easy. However, no matter how harsh the circumstances are, people should not withstand m...

Diana Smith - avatar Diana Smith

Double the interest in eCommerce spaces from businesses after COVID-19 lockdown

Recent lockdown restrictions have emphasised the necessity of an eCommerce function in future-proofing retail businesses. Sydney-based co-working space, Workit Spaces, has seen double the amoun...

Steve Fletcher, National WHSQ Manager at Drake International - avatar Steve Fletcher, National WHSQ Manager at Drake International

Tips for Setting Up an E-Commerce Website

If you are fed up with the 9-5 daily grind and would like to make a living selling products online, setting up an e-commerce website might just be the answer. Many Australians have already freed t...

News Company - avatar News Company



News Company Media Core

Content & Technology Connecting Global Audiences

More Information - Less Opinion